Tandor Restaurant Limited,Mahendra Kamat,Debendra Kamat & Sitaram Kamat v Estate of the Late Suresh Bhasin,Kamlesh Bhasin,Vishal Kochhar & Registrar of Companies [2004] KEHC 400 (KLR)

REPUBLIC OF KENYA IN HIGH COURT OF KENYA AT NAIROBI CIVIL CASE 984 OF 2004

TANDOR RESTAURANT LIMITED…………………….1ST PLAINTIFF

MAHENDRA KAMAT…………………………………....2ND PLAINTIFF

DEBENDRA KAMAT………………………………….…3RD PLAINTIFF

SITARAM KAMAT……………………...…………….…4TH PLAINTIFF

VERSUS

ESTATE OF THE LATE SURESH BHASIN……..…1ST DEFENDANT

KAMLESH BHASIN……………………….……….…2ND DEFENDANT

VISHAL KOCHHAR……………………………….…3RD DEFENDANT

REGISTRAR OF COMPANIES……………………...4TH DEFENDANT

RULING

By their amended Notice of Motion of the 4th Of October 2004 the Applicant seeks an order that the 3rd Defendant, his servants, employees and or agents be removed and or restrained from dealing in any way with the business of the 1st Plaintiff until the final determination of this suit.

The orders sought in prayers 3 and 4 were not pursued as indeed they cannot as they are not proper matters to be dealt with in an interlocutory application. The 1st Plaintiff is a Company incorporated under the provisions of the Companies Act.

The original shareholders are Suresh Bhasin who held 510 ordinary shares of Kshs 100 each giving him control of the company. The other three shareholders are the 2nd, 3rd and 4th Plaintiffs who between own equally the balance of the shares of 490 shares of Kshs 100 each.

Suresh Bhasin died and as at present no one has been given letters of representation to his estate.

It is alleged the late Mr. Bhasin signed share transfer forms transferring 30 shares each to the 2nd, 3rd and 4th Plaintiff. However this transfer has not been concluded and cannot be taken into account at present in the share capital of the 1st Plaintiff.

The 2nd defendant the deceased’s widow, it is alleged purported to transfer her deceased husband shares to herself and appointed the 3rd Defendant as her attorney to run the business of the 1st Plaintiff.

There were two directors of the company, the deceased and the 2nd Plaintiff.

The Articles of the 1st Plaintiff provides for 2 directors, however if one director dies the remaining director can run the company but if need be that remaining director can appoint an additional director under the provisions of Regulation 95 of Table A of the Companies Act.

The 2nd Plaintiff is therefore the proper person to run the affairs of the 1st Plaintiff. It is no reason to exclude him on the grounds that he does not understand accounting or the running of a business.

I notice from a search at the Companies registry that the widow appears as a director and shareholder in the company. How this entry came to be there has not been explained, however, it is not in dispute that her late husband was the shareholder and director.

Mr. Odera took technicality points that there was no board mandate authorizing the suit. As the 4th Plaintiff is the sole director he was entitled to file the suit which must be presumed to be correctly filed until the application is proved.

The suit was filed on the 21st September 2004 being the date of the original Notice of Motion before amendment. This appears to be an order.

In the circumstances until the widow can gain control of the company after being appointed as her late Husband’s representative l give an order that the 3rd Defendant is restrained from running the 1st Plaintiff business. If the facts change the plaintiffs are at liberty to apply. Costs in cause.

DATED AND DELIVERED THIS 3RD DAY OF NOVEMBER 2004

PHILLIP J RANSLEY

JUDGE